Defendant's motion to dismiss claim alleging, among other intentional acts, that correction officers assaulted claimant is granted where claim was not served within time limitations period set forth in Court of Claims Act 10 (3-b).
|Claimant(s):||MICKAIL DRAYTON ARCHER|
|Claimant short name:||ARCHER|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||FRANK P. MILANO|
|Claimant's attorney:||MICKAIL DRAYTON ARCHER
|Defendant's attorney:||HON. BARBARA D. UNDERWOOD
NEW YORK STATE ATTORNEY GENERAL
By: Thomas R. Monjeau, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||May 30, 2018|
|See also (multicaptioned case)|
Defendant moves to dismiss the claim based upon claimant's failure to timely serve the claim as required by Court of Claims Act 10 (3-b). Claimant opposes defendant's motion to dismiss the claim.
The claim alleges that claimant was assaulted by correction officers at Clinton Correctional Facility, and suffered from other intentional actions of defendant, between February 27, 2017 and March 4, 2017.
The claim, although it includes the word "negligent" in two places, is based upon explicitly detailed allegations of intentional conduct of defendant.
The claim accrued, at the latest, on March 4, 2017 and was served on the defendant on March 12, 2018, more than one year after the latest date of accrual of the claim.
The Court notes that claimant's responsive submission to defendant's motion offers no competent admissible proof in opposition to the factual allegations of the defendant's motion. Additionally, the claimant's submission in opposition contains no proof of service upon the defendant and, absent such proof, has not been considered by the Court (see CPLR 2214 [c]).
Claimant's cause of action alleging intentional assault, among other intentional acts, is time-barred by Court of Claims Act 10 (3-b).
Court of Claims Act 10 (3-b) provides at relevant part as follows:
"A claim to recover damages for . . . personal injuries caused by the intentional tort of an officer or employee of the state while acting as such officer or employee . . . shall be filed and served upon the attorney general within ninety days after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within one year after the accrual of such claim."
Courts have consistently held that "[a]s a condition of the State's limited waiver of sovereign immunity, those requirements [timely filing and service] are strictly construed and a failure to comply therewith is a jurisdictional defect compelling the dismissal of the claim" (Welch v State of New York, 286 AD2d 496, 497-498 [2d Dept 2001]; see Robinson v State of New York, 38 AD3d 1030 [3d Dept 2007]; Pizarro v State of New York, 19 AD3d 891, 892 [3d Dept 2005], lv denied 5 NY3d 717 ).
The claim alleges, and defendant admits, that a notice of intention to file a claim was served on the Attorney General within ninety days of accrual of the claim.
As set forth in Court of Claims Act 10 (3-b), such service provided claimant a one-year period, measured from the date of accrual, in which to file and serve his claim.
Claimant failed, however, to serve his claim within the one-year period after accrual.
The claim is barred by Court of Claims Act 10 (3-b).
Claimant further alleges that the defendant violated the New York State and United States Constitutions, respectively.
Although the Court of Appeals has recognized a narrowly defined cause of action for a state constitutional tort in the Court of Claims (Brown v State of New York, 89 NY2d 172, 177-178 ), "no such claim will lie where the claimant has an adequate remedy in an alternate forum" (Shelton v New York State Liquor Authority, 61 AD3d 1145, 1150 [3d Dept 2009]; see Martinez v City of Schenectady, 97 NY2d 78, 83-84 ).
Claimant could have pursued relief through CPLR Article 78 or through a federal 28 USC 1983 action and his state constitutional tort claim thus "does not lie" in the Court of Claims (Shelton, 61 AD3d at 1151).
With respect to claimant's allegation that defendant violated claimant's federal constitutional rights, the law is settled that "claims for damages against the State based on alleged deprivations of rights under the US Constitution are beyond the jurisdiction of the Court of Claims" (Shelton v New York State Liquor Authority, 61 AD3d 1145, 1151 [3d Dept 2009]; see Matter of Gable Transport, Inc. v State of New York, 29 AD3d 1125 [3d Dept 2006]; Welch v State of New York, 286 AD2d 496, 498 [2d Dept 2001]; Zagarella v State of New York, 149 AD2d 503 [2d Dept 1989]; Davis v State of New York, 124 AD2d 420, 423 [3d Dept 1986]).
The defendant's motion to dismiss is granted. The claim is dismissed.
May 30, 2018
Albany, New York
FRANK P. MILANO
Judge of the Court of Claims
1. Defendant's Notice of Motion, filed March 23, 2018;
2. Affirmation of Thomas R. Monjeau, dated March 23, 2018, and attached exhibits;
3. Unsworn statement and attachments of Mickail Drayton Archer, received April 4, 2018.